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Australian Labor government uses legal action against Japanese whalers as a con to pacify voters

The former prime minister Kevin Rudd launched legal action against Japan’s whaling program despite opposition from senior ministers and officials who warned it was likely to fail and strengthen the hand of the Japanese.
Leaked United States diplomatic cables also indicate that the decision to take Japan to the International Court of Justice was designed to divert public pressure on Labor over whaling. The Department of Foreign Affairs warned that the case against Japan’s ”scientific” whaling would ”either fail completely or, at best, set up the Japanese to simply make changes to their program to improve the science”. And a senior Australian diplomat told the Americans that both the then foreign minister Stephen Smith and the trade minister Simon Crean had made clear their opposition to an international legal challenge.

According to the cables, obtained by WikiLeaks and provided exclusively to the Herald, officials told US diplomats that even if successful, legal action against Japan would be ”unlikely to stop the whale hunt entirely”. They added that ”equally importantly, such action would probably take a long time, removing some of the pressure on the government for the next few years”.

The government yesterday attempted to play down earlier revelations that Australia had been prepared to secretly negotiate a compromise to allow continued Japanese whaling. The acting Attorney-General, Brendan O’Connor, said that the ICJ case demonstrated that the government was not soft on whaling. ”I think that underlines the seriousness of the matter and the fact that this government … opposes whaling and will continue to fight through the courts,” he said. But the new embassy cables show that the government’s advisers were deeply pessimistic about the prospects of success in any legal action.

In October 2008, as officials were working to develop their case, the US embassy reported to Washington that domestic political considerations were high in Mr Rudd’s thinking. It said he was likely to eventually see legal action ”as the least damaging politically of his limited choices in dealing with public anger over whaling”. However, the embassy also reported the Foreign Affairs Department’s environmental strategies director, David Dutton, had admitted that his department and the Attorney-General’s Department ”had long shared the view that international legal action against Japan’s whaling program has a limited chance of success”. Mr Dutton told US diplomats that the Attorney-General’s Department had ”recently done an about face” to argue that the prospects for success at the ICJ were ”high enough to justify taking action”. Mr Dutton said the Foreign Affairs analysis was that the only basis for effective action was that Japan’s whaling violated the International Whaling Convention because it did not achieve substantive scientific outcomes. ”[Foreign Affairs] continues to believe that such a challenge will either fail completely or, at best, set up the Japanese to simply make changes to their program to improve the science,” the US embassy reported to Washington.

The cables also reveal that the Rudd cabinet was ”very divided” over how to deal with whaling, with the prime minister reported to have been ”increasingly worried that the Japanese will forge ahead despite Australian concerns”. The embassy reported that Mr Dutton had said that Mr Smith and Mr Crean ”had made clear their opposition to an international legal challenge, but opined that … DFAT and by extension [Mr] Smith had ceased to have much relevance in influencing the PM’s office on this issue”. When they announced the legal challenge in May last year, Mr Smith and the then environment minister Peter Garrett said the government had ”not taken this decision lightly”.

However, the cables also reveal that domestic politics featured prominently from the start of the government’s consideration of possible legal action against Japan. Soon after the election of the Labor government, the embassy reported Australian government contacts were saying that referring Japan’s whaling program to the ICJ ”would be unlikely to stop the whale hunt entirely, but could well force modifications that would make it more difficult for the Japanese”. The embassy’s contacts also suggested that ”equally importantly, such action would probably take a long time, removing some of the pressure on the government for the next few years”. Australia is not required to file its detailed arguments with the court until May and Japan is not obliged to respond until March next year. A hearing may not take place until 2013.

The leaked cables also reveal Japanese confidence that Australia’s legal challenge would fail and vindicate Japan’s position. In February last year the US embassy reported that the Japanese deputy head of mission in Canberra had observed that the then foreign minister Katsuya Okada had ”made clear his growing annoyance with Australian complaints about whaling”. ”Okada is very confident that Tokyo will win a legal challenge and has suggested internally that it would be good for Japan to show that its whaling program is on firm legal ground,” the embassy reported.

The Greens and the opposition yesterday attacked the proposed Australian government compromise with Japan. The opposition environment spokesman, Greg Hunt, said Labor had damaged Australia’s case against Japanese whaling. ”It’s absolutely clear that the Australian government was saying one thing publicly and then another thing privately about whaling so as to allow the continued hunting and slaughter of whales, all of the while this was being denied by the government.” The Greens leader, Bob Brown, also said the proposed compromise was ”very troubling”. ”Hopefully this may help the current government take a stronger line,” he said. He urged the government to use all available legal and diplomatic means, as well as naval surveillance, to increase the pressure on Japan to end the slaughter of whales.

This article once again proves that one can never trust any politician to either tell the truth or to honestly be on the side of genuine public interest. Direct action (like the one involving the Sea Sheperd team) seems to be the only honest way to defend and preserve the natural ecology.